In consequence to my last post on rectification of trade marks, a senior and friend, who has prolific experience in the area, had an engaging discussion with me on the issue. For someone who has a different take and reads the law crystal clear, he brought to attention certain aspects, that to my mind, bring a twist in the tale!
Undoubtedly, rectification petitions, are an opportunity to correct certain errors or defects that may be on the Register with respect to a mark. The provision also allows for removal. However, can the provision be read so broadly as to override all authority and prudence that the Trade Marks Registry exercises while examining a mark?
To my mind, the answer is a May Be Not. The Trade Marks Registry, being a quasi judicial body, does the first round of screening by raising objections under Sections 9 and 11 of the Act. To remind ourselves, Section 9 deals in Absolute grounds for refusal while Section 11 deals in relative grounds for refusal, i.e. cases that cover deceptively similar marks.
If one were to look at the language of Section 57, the section allows “any person”. In this view, it would also allow, commoners like you and me to move a petition. This should be acceptable, since there are grounds under Section 9 that may impact one’s sentiments, such as the ground disallowing marks that are offensive to religious sentiments to be registered.
Perhaps in the Rhizome Judgment discussed, the overriding of the Authority of the Registry is what the Judge aimed to emphasize on. But what if one would really want to challenge the registrability of a mark on either of these two grounds? Could one merely adduce these on the basis of common law, without statutory backing? May be!
I have been thinking of this issue for some time now, but have not been able to find the light. On one hand, it appears that the opposition is aimed at creating a market place where competitors exercise diligence. On the other hand, what if an individual or small scale proprietor, without registered trademark rights, but perhaps long enough existence and repute, miss the opportunity to oppose?
I believe that this twist will need substantial research. I hope some trade mark practioners here, in the meanwhile, will render their valuable inputs.